New ICE Directive Formalizes Policy of Making Courthouse Arrests

An engraving outside of the René C. Davidson Courthouse in Oakland. (Adam Grossberg/KQED)

Federal immigration authorities formalized a policy Wednesday to send deportation agents to federal, state and local courthouses to make arrests, dismissing complaints from judges and advocacy groups that it instills fear among crime victims, witnesses and family members.

The two-page directive from U.S. Immigration and Customs Enforcement said it will enter courthouses only for specific targets, such as convicted criminals, gang members, public safety threats and immigrants who have been previously deported or ordered to leave. Family, friends and witnesses won't be picked up for deportation, according to the directive, but ICE leaves a caveat for "special circumstances."

The policy, signed by ICE Acting Director Thomas Homan, says immigration agents should generally avoid arrests in noncriminal areas of the court, like family court and small claims, unless a supervisor approves.

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ICE -- in a jab at "sanctuary cities" that limit their work with immigration authorities -- said "increasing unwillingness of some jurisdictions to cooperate with ICE in the safe and orderly transfer of targeted aliens inside their prisons and jails has necessitated additional at-large arrests."

Immigration agents made courtroom arrests under the Obama administration, but the pace appears to have picked up under President Trump, whose administration has seen a roughly 40 percent surge in arrests overall and eliminated directives that prioritized arresting immigrants who have criminal records and are in the U.S. without authorization.

Last March, California Supreme Court Chief Justice Tani Cantil-Sakauye asked ICE to stay out of the state's courts, writing, "Courthouses should not be used as bait in the necessary enforcement of our country's immigration laws."

Cantil-Sakauye expressed cautious optimism about the new directive.

"If followed correctly, this written directive is a good start," she said in a written statement. "It’s essential that we protect the integrity of our state court justice system and protect the people who use it."

Washington state Supreme Court Chief Justice Mary E. Fairhurst wrote last year that ICE's presence was "deeply troubling because they impede the fundamental mission of our courts, which is to ensure due process and access for everyone, regardless of their immigration status."

Sarah Mehta, a human rights researcher with the American Civil Liberties Union, said the new policy is useful for those seeking to understand ICE's self-imposed limits. But she added that it may have come too late to allay fears among those who feel ICE may target them.

"A lot of the damage has been done over the last year," she said.

In a statement issued Wednesday, San Francisco District Attorney George Gascón criticized civil immigration arrests at courthouses. The city's policies minimizing cooperation with federal immigration enforcement have made it a target for the Trump administration's campaign against so-called sanctuary cities.

"I know it to be a fundamental truth that our neighborhoods are safer when people from all communities can work with law enforcement and come to our courthouses without fear that their immigration status will be used against them," Gascón said. "Any policy that supports immigration agents making arrests in our courthouses serves as a deterrent to participation."

ICE reaffirmed that a 2014 policy to avoid deportation arrests at "sensitive locations," including schools, day-care centers, hospitals, places of worship, funerals, weddings, rallies and public demonstrations, is still in place. Courthouses have never been part of that list.